R v RT

District Court of NSW|2024-06-28

JUDGMENT

RT appears for sentence with respect to one count of sexual intercourse with a person between the ages of 10 years and 16 years. Such an offence contravenes s 66C(1) of the Crimes Act 1900 and at the time of the offending carried a maximum penalty of 8 years imprisonment. He has pleaded Guilty to that single count and asks the court to take into account two further offences which have been included on a Form 1.
The first offence included on the Form 1 alleges aggravated indecent assault of a victim under the age of 16 years contrary to the provisions of s 61M(1) of the Crimes Act 1900. Such an offence carried a maximum penalty of 7 years at the time of the offending.
The second offence on the Form 1 also alleges sexual intercourse with a person between the ages of 10 and 16 years contrary to s 66C(1) of the Crimes Act 1900.
The substantive offence with respect to which he appears for sentence occurred within a narrow date range specified as between 23 December 1991 and 26 December 1991 in the indictment. The facts make clear the offence is said to have occurred on Christmas Eve in 1991.
The offender, who was born in June 1975, was approximately 16 and a half years of age at the time.

BACKGROUND CIRCUMSTANCES

The offender grew up in a home with his parents and two siblings, a younger brother and the even younger victim. In light of the prohibition on identifying either the victim or the offender, I do not propose to make any specific reference to locations.
In approximately 1987 to 1988, when the victim was in years 2 to 3 at school, she was struggling with reading. At that time, the offender offered to help her with her reading. He would have been approximately 11 years of age up to about 13 years of age during that period.
On an evening when the children's mother was working night shift, the victim took a fairytale book to her older brothers' bedroom to have his assistance in improving her reading. She got into bed with him. She was wearing a nightie with underpants and the offender was wearing boxer shorts.
The offender started to read the fairytale, presumably aloud. After a short time, he said that it was boring and suggested that they do something else. He shut his bedroom door and got back into bed with his younger sister.
He said: "Give me your hand" and took one of her hands and placed it on his penis on the outside of his boxer shorts. He put his own hand on top of hers and rubbed her hand back and forth. He then took his hand away and said: "Keep going that feels good." The victim felt his penis become erect. She does not recall what made the offending stop.
This first incident of sexual interaction between the offender and the victim is relied upon as uncharged context evidence. It illustrates the commencement of the sexual misconduct that followed over several years.
At some time after first helping the victim with her reading, the offender asked his sister to kiss his penis. She complied and he said: "Open your mouth wide and put it in your mouth." This first time an act of fellatio occurred was during the period 1987 to 1988. It subsequently occurred regularly.
On one occasion which the victim described when she was 8 or 9, the victim felt his penis in the back of her throat. She described him having ejaculated into her mouth. She recalled that it tasted disgusting and that she spat it out on the bed. The offender then told her: "You're meant to swallow that." Acts of fellatio thereafter occurred regularly. That circumstance is also relied upon as context evidence.
The events giving rise to the substantive offence before this Court for sentence occurred on Christmas Eve, 24 December 1991. That night, after the rest of the family were asleep, the offender called the victim into his bedroom and shut the door. He was 16 years old at the time and the victim was 12 years of age.
He handed her a present wrapped in Christmas paper. When she opened it up, she saw a royal blue satin lingerie top with matching satin underpants, a black lace bodysuit with a satin mini skirt with black satin buttons, and a lacy pair of red or purple underpants.
The offender told her that as she was going into high school he wanted to give her a special gift. The offender required his sister to parade the items one by one. While she was in the black lace bodysuit he called her over to his bed. She sat on the bed and the offender, who was lying on the bed, reached up and touched the lace on her back. He then ran his hand over her shoulder and down the front of the bodysuit and on to her breasts. He told her: "That looks so good on you." This particular action forms the basis of the charge which was subsequently preferred of an aggravated indecent assault on a victim under the age of 16 years.
As noted earlier, this is the first offence on the Form 1. If prosecuted separately, it would attract a maximum penalty of 7 years imprisonment. It should be noted in passing that such a maximum penalty for that type of offending was the maximum penalty in 1991. Section 61M(1) has subsequently been repealed. Offending of the type which occurred, in relation to a child between 10 and 16, would now attract a maximum penalty of 10 years imprisonment (s 66DB sexual touching - child between 10 and 16).
The offender then removed his boxer shorts and the victim performed fellatio on him until he ejaculated. This act forms the basis for the substantive offence of sexual intercourse with a person between 10 and 16 years of age in respect of which the offender appears for sentence.
The regular incidents of fellatio being performed by the victim on the offender thereafter continued. She described being required to attend his bedroom most nights during those summer holidays. She would change out of her nightie and get into her lingerie before performing that act. She described him becoming more "handsy" following the purchase of the lingerie, including touching her skin near her vagina and touching her breasts which had developed during the period of 1991 to 1992.
The victim subsequently described occasions when the offender would touch her clitoris, causing it to "tingle". She described a particular incident when they were lying together on his bed. The offender touched her clitoris so that she was about to orgasm. At that point, he stuck four fingers into her mouth to stop her from making a noise. She described the taste of his fingers and said that she was shocked and did not orgasm.
The victim places this incident sometime in the broad range after Christmas 1991 and before the beginning of October 1993, at which time the family moved premises. The precise date of the incident was not more particularly identified.
The incident described formed the basis for a further count of sexual intercourse with a child between 10 and 16 years, contrary to s 66C(1) of the Crimes Act 1900. It is the second matter placed on the Form 1.
It is the Crown case that the imprecision of when this offence occurred requires the offender to be dealt with as being a child at the time.
At around the time the family moved premises, identified in the Agreed Facts as October or November 1993, the offender gave the victim the lingerie, telling her: "You can have this, if you want."
The offending ceased with the offender moving out of home a short time after the family relocation.
In approximately 1999 or 2000, the victim disclosed to her then partner that the offender had asked her for oral sex when she was growing up.
In August 2020, the father of both the victim and the offender was convicted of sexual offending against his granddaughter. The material provided to this Court does not indicate which granddaughter was the victim of that abuse nor which of the grandfather's own children, namely the victim, the offender, or the other brother, was the parent of that victim. The Agreed Facts state that this incident brought the memory of the abuse up afresh for the victim in the present proceedings.
In November 2020, some time after her father had been charged, the victim disclosed to her husband that she had been abused by the present offender when they were children. In late November 2020, the offender visited the victim and her family where they were residing interstate. The victim confronted the offender and spoke with him about attending psychologists for years. She said that she was suicidal. She told him: "I don't want to go to the Police, I just want you to speak to mum about the abuse and tell her the truth." The offender told her: "I'm completely shattered of these things that happened to you as a child and that have had such a terrible effect on you that you are suicidal in adulthood and I feel terrible for my part in that."
He told his sister: "I'm here for you, you can call me day and night to talk. I've got your back, you're not going to die on my watch." The offender also told her that it was not a good time to tell their mother. He said: "I will tell mum when the time is right."
It should be observed in passing that the suggestion that it was not a good time to discuss it with their mother was a statement made in the context of their father, their mother's husband, having recently been charged with sexual abuse against one of his granddaughters.
The Agreed Facts then make reference to a group email having been forwarded by the victim to both of her brothers and to their mother. The email is described as being about the allegations and included some attachments.
Some of that material was tendered to this Court in pre-trial applications which were determined when the matter was still in the District Court sitting in Newcastle. The relevant detail is referred to in my earlier judgment R v RT (No 1) [2024] NSWDC 116.
The family situation at that time included not only allegations against the present offender and the situation with respect to their father, but also included allegations of sexual abuse against the victim's other brother.
In February 2021, the offender did have a conversation with his mother in which he told her that he had done things to his sister when they were younger which he was not proud of. He told his mother "I am very sorry and I regret it."
In March 2021, the victim reported the matter to police interstate and provided a statement. She subsequently provided numerous additional statements, both interstate and in New South Wales.
Future Court Attendance Notices were issued against the offender in August 2023. The offender was committed for trial to the District Court in Newcastle in November 2023. He proffered a plea of Guilty at an earlier stage in the proceedings, which offer was initially not accepted by the Crown.
In the course of pre-trial applications seeking to obtain relevant documentation, a count in the proposed indictment was withdrawn following the obtaining of a further statement from the complainant in which she was unable to say which of her brothers had committed the alleged offence.
On 17 April 2024, the earlier proffered plea of Guilty was accepted in discharge of the indictment, and the remaining two counts in the proposed indictment were placed on the Form 1 document.
The Crown acknowledges that the full 25% discount with respect to the plea is appropriate.

VICTIM IMPACT STATEMENT

The victim in the present matter provided a victim impact statement. It sets out the detail of the ongoing psychological and emotional damage which she has suffered. The Crown does not rely upon that statement as an aggravating feature beyond what, regrettably, is customarily to be anticipated as a consequence of offending of the kind before the Court.
It is, however, appropriate to temper, at least to a limited degree, the ongoing psychological and emotional trauma of the victim in recognition of the dysfunctional circumstances within her family. The reference to dysfunction within the family refers to the allegations which she maintains against her other brother and the subsequently revealed sexual abuse against one of her father's granddaughters. Just what the relationship is between the victim and the granddaughter is not revealed in the material before this Court. Whether it was a niece or a closer familial relationship is unknown.
However, the material in the victim impact statement buttresses the finding that the Court expressly makes pursuant to s 25AA(1) of the Crimes (Sentencing Procedure) Act 1999 of the ongoing effect of offending of the type before the Court.

OBJECTIVE SERIOUSNESS

It cannot be gainsaid that all child sexual abuse offences are inherently serious. However, even within the categorisation of child sexual abuse, and in particular, with respect to the specific charge alleged in any case, there remains to be considered a range of offending. As described by the High Court in Kilic v The Queen [2016] HCA 48; 259 CLR 256, the spectrum ranges from the least serious in the relevant category to the worst case, properly so-called.
While there is no hierarchy of classification with respect to different modes of sexual intercourse within the extended statutory definition of that offence, it is clear that in many factual circumstances which have been dealt with by the Court of Criminal Appeal, intercourse by penile/vaginal or penile/anal penetration may properly be considered as a more extreme violation of a victim than a penetration of the oral cavity. It is to be emphasised that that does not mean that an act of fellatio is not itself an extremely serious violation of the criminal law. This is particularly so if it includes ejaculation.
However, when considered along the spectrum contemplated by the High Court in Kilic, the offending, in my view, falls toward the lower end of a broadly defined mid-range, or perhaps slightly under that.

SUBJECTIVE FEATURES

The offender was born in 1975. He grew up as the oldest child in his family. He had one brother who was approximately 12 months younger, and his sister, the victim, who was approximately 4 years younger. The family grew up in a five bedroom house with two bathrooms on a two-acre block. That description, which is included in the Agreed Facts implies that the family was reasonably well off.
Little detail has been provided to the Court regarding the offender's early life as an adult after leaving school. Other than some material indicating that he attended university which was included in material provided during the pre-trial application, little is known of his qualifications and early employment other than the fact that he had no interactions with the criminal justice system.
The offender married and had four daughters. They are now all adults.
At some stage, which is not specified in any of the evidence, the offender and his wife separated. He has subsequently remarried and has two stepsons.
His current wife gave evidence in support of him in the sentence proceedings. He and his current wife were married in March 2022. She indicated her perception of his good character and described him as the sole breadwinner for the family. The family now resides in Northern New South Wales in a house with a substantial mortgage. She indicated an inability to cover the mortgage in the event that the offender was to be imprisoned.
She indicated that he had expressed his remorse to her for his conduct when he had been a teenager. She understood that the offending behaviour was of fellatio and she was aware that there was more than one charge. She was also aware that the victim had been only 12. She was cross-examined about the extent of the detail of the evidence about which she had not been, in terms, advised.
Evidence was also called from a friend and work colleague of the offender, Mr [redacted]. He has known the offender for 23 years in both a capacity as a work colleague and also as a friend. He described the offender as valuing family, friendships and hard work. He described him as a person who looks out for those who were not maybe doing so well and also looking out for his community. He described the offender as valuing the role of being the best father figure he could be to his four daughters and now as a grandfather to his own grandchildren. He described the offender playing an active role in the upbringing and care of his, that is Mr [redacted], own two daughters. He vouched for the offender's moral compass and described his character as one of high integrity, honesty, ability to show great empathy and trust. He also described the offender as being capable of self-reflection. With respect to the offender's occupation as a Financial Systems Consultant, he descried the offender as "an absolute professional". He said he was someone who always went the extra mile to service his clients. He also described him as building positive workplace relationships. He said he was a well-liked and respected member of the work team.
Mr [redacted] indicated in the course of his evidence that he was made aware of the nature of the charges approximately 14 to 15 months ago. He understood that the offences involved sexual assault against the offender's own sister when the offender was a teenager and that he was charged with an act of fellatio. He said that the offender had expressed remorse to him for the pain he had caused right across the entire family.
A reference was tendered from a Senior Executive Officer of the offender's employer. Mr [redacted] described his position as the Major Projects Manager and also Manager of the Retail Division for [redacted], a wholesale fuel distributor and service station operator which employs some 230 people throughout New South Wales and Queensland. Mr [redacted] said that he had been made aware of the charges that the offender was facing and the fact that he had pleaded Guilty. He said he had known the offender and his family for more than a decade. He described him in the following terms: "(RT) is loved and admired by his children and wife. He has always been devoted to their well-being, guiding them through life. I know this because I have always seen (RT) as a great example as my own family grows in this often challenging world."
Mr [redacted] said that the offender was employed as the financial controller for "our family-owned business". He said the turnover of the company approached $1 billion. He said that the offender's financial skills were invaluable to the business, as was his commitment. He described the offender as a role model, displaying exemplary leadership skills throughout the business and providing guidance and support for other employees.
A reference was also tendered from one of the offender's own daughters. She indicated that she is presently 25 years of age. She said she had been made aware of the charges that her father was facing and that he had pleaded Guilty to them. She described her father as follows: "I have always regarded (RT) as the most respected, compassionate and loyal man in my life. His devotion to our family, from my earliest memories to now, have not gone unnoticed. (RT) has displayed a great deal of patience, respect and empathy while raising us four daughters, as well as my two stepbrothers. I am in awe of his composure and aura as a parent, it inspires me everyday to be half the parent to my children he is to me."
She described in further praiseworthy terms: "He has taught me the importance of self-respect, respect for others and the ability to reflect and overcome life's challenges. The love and manner of which he speaks about my mother and his wife has always inspired me to find the same for myself."
She described her own children and her nephew adoring him as their grandfather. She said: "he is one of the few people my fiancé and I trust with our children, and who our children trust."
The Court was assisted also by a Sentencing Assessment Report dated 28 June 2024. The author of that report, Community Corrections Officer Damien Waples, confirmed that apart from the current offending, the offender had not been involved in the criminal justice system. The report writer confirmed that the offender was surrounded by pro-social influences, including his family and a supportive group of friends.
It was verified that the offender had been employed for the past 14 years as the financial controller of the large organisation based in the Northern Rivers. With respect to the offender's attitude towards his offending, it was noted that he had been in his teenage years at the time. The offender stated that he could not recall what had made him commit the offences. He said he had had a normalised upbringing and was not able to identify any triggers for his actions. He described normal sexual ideologies with what he assumed was a normal spike in hormones on entering his teenage years.
He acknowledged that the victim had done nothing wrong, and he accepted responsibility for his actions, which were associated with a lot of shame.
The offender told the author of the report that he had no idea of the long-term impact his actions would have had on his sister.
The report writer described that during the initial interview with the offender he had minimised the impact of the offences. However, throughout later discussions, he stated that "he had been a stupid kid" and acknowledged "what happened was wrong and his sister would have had to deal with his actions throughout her teenage and adult life". The offender was described as having engaged appropriately at all times during the preparation of the report.
Pursuant to the Level of Service Inventory-Revised (LSI-R) the offender was assessed at a low risk of reoffending.
He was assessed as suitable to undertake community service work if that were a condition of any order, and 21 hours per month could be provided. He would be supervised at the Tier 3 low supervision level which would require him to have contact with a Community Corrections Officer every 4 weeks.
The author of the report referred the offender for information from Communities and Justice Psychology Services with respect to an assessment of risk and treatment options for the offender.
Carolyn Scholten, a clinical psychologist, was provided with an order for the report, a copy of the NSW Police Force Criminal History (which of course had no entries) and the Agreed Facts on sentence. There was no interview conducted with the offender and a comprehensive assessment was not undertaken. However, an actuarial risk assessment, STATIC-99R was administered. The authors of the STATIC-99R stipulated that the assessment should not be used with adolescents under the age of 17 and that it should be interpreted with caution when evaluating offenders who committed their offences at the age of 17. The offender's total score on this actuarial risk assessment was -1. That is described as Level II or "below average risk". It is to be noted that this assessment "should be interpreted with caution" given the apparent age of the offender with respect to the second offence on the Form 1, and noting, of course, that he was 16 years of age at the time of the principal substantive offence.
However, the outcome was not inconsistent with the assessment pursuant to the LSI-R.

CROWN SUBMISSIONS

The learned Crown Prosecutor, Ms Winborne, helpfully provided the Court with written submissions. These were supplemented by oral submissions. The Crown appropriately reminded the Court of the application of s 25AA of the Crimes (Sentencing Procedure) Act 1999. The impact of the trauma of sexual abuse on children was emphasised. The Court was reminded that the oft-quoted passage from R v Gavel [2014] NSWCCA 56 at [110] which in turn quoted the recognition of the long-term and serious harm, which had been referred to by Baroness Hale of Richmond in R v G [2008] UKHL 37; [2009] 1 AC 92.
While the Crown said that the offender's role fell short of an aggravating feature of a breach of trust, it noted his position as an older sibling. The Crown submitted that the offence having taken place in the family home, and specifically the home of the victim, was an aggravating factor. The Crown's submission focused on the continuing course of conduct in support of a submission that the offending fell in the mid-range of objective seriousness. The Crown made reference to DPP (NSW) v TH [2023] NSWCCA 81 where an offence involving fellatio committed on a 12-year-old stepson, which was part of ongoing abuse, had been assessed as being just under the mid-range of objective seriousness. That assessment was neither challenged nor critiqued on appeal.
Conversely, in Brown v R [2023] NSWCCA 330, reciprocal fellatio offences committed between a 54-year-old and an initially willing 14-year-old victim who had originally met online and subsequently physically met at a pre-arranged meeting at public toilets in a park, led to an assessment of the offending in that case to being "well within the mid-range." A ground of appeal challenging that assessment was not successful.
With respect to these two cases to which the Crown has referred, it should be noted that TH was between 34 and 38 years of age at the time of the offending conduct. The victim was his stepson and had been aged between 9 and 13 at the time of the offences. Uncharged offending had commenced when the child was 7 or 8 years of age. The sexual offences charged occurred over a four year period and included sexual intercourse with a child under 10 and aggravated sexual intercourse with a child between 10 and 14 years. The indicative sentences which had been imposed at first instance were described in the Court of Criminal Appeal as being "far below any conception of the proper range of sentences for such offending."
Whilst determining whether the aggregate sentence was manifestly inadequate and proceeded to re-sentence, the decision in the Court of Criminal Appeal was substantially influenced by the age of the victim, the disparity between his age and the offender's age, and the betrayal of a position of trust and authority.
In determining increased indicative sentences, the judgment in the Court of Criminal Appeal did not make any criticism of the assessment of objective seriousness where the sentencing judge had described the particular acts of fellatio as being "just under the mid-range of objective seriousness." Flannery DCJ had made that observation with respect to charges involving a maximum penalty of life imprisonment (relating to s 66A(1)) and also with respect to similar conduct charged under s 66C(2) with a maximum penalty of 20 years imprisonment.
The matter of Brown, although involving mutual acts of fellatio, was objectively very different to the present case. The offender was more than 40 years older than his victim who he knew was under 16. The offending was fully orchestrated and planned and followed contact over the internet. It was clearly objectively more serious than the interaction between a teenage sibling and his younger sister.
The Crown in the present matter reminded the Court that the psychological harm done to the victim must be recognised. The Crown fairly observed that such harm is an expected outcome of the offence and accordingly the Crown does not rely upon the substantial emotional harm as a feature of aggravation. To do so would risk double counting: see Stuart v R [2012] NSWCCA 183.
The Crown made a similar submission with respect to the breach of trust and authority within the sibling relationship. The Crown submitted that it was part of the matrix of factors in assessing the objective seriousness of the offence, but that it was not an aggravating factor for the purposes of s 21A of the Crimes (Sentencing Procedure) Act.
The Crown does, however, rely upon the commission of the offence in the home as an aggravating factor. While recognising that it is an identified aggravating factor pursuant to s 21A, whether it is properly a feature of aggravation is a matter for the Court's determination.
The commission of an offence in a victim's home as an aggravating factor is not restricted to offences committed by an intruder: see R v Lulham [2016] NSWCCA 287.
Clearly, a child is entitled to have a reasonable contemplation and expectation of being safe and secure in their own home. In the circumstances of the violation of the sibling relationship by the victim's older brother, although somewhat nuanced, the fact that it took place in the family home, is, to some degree, a factor of aggravation.
The Crown made reference in its written submissions to the complexity of identifying appropriate sentencing patterns and practices in circumstances where the maximum penalty and principles of sentencing law have changed. The difficulties in this regard were recognised in R v Carey [2024] NSWCCA 90 at [46] to [53] in the judgment of Hamill J (who was in dissent only as to the exercise of discretion on a Crown appeal).
I will refer shortly in these Remarks to the Crown's references to statistics in support of the proposition that a pattern of sentencing appears to be changing from where non-custodial sentences have previously been imposed.
The Crown's submissions recognised that delay was relevant and added significantly to the complexity of the sentencing.
The Crown's ultimate submission was that based upon comparisons with the case of Young (a pseudonym), "and in the absence of a compelling subjective case", a sentence of full-time imprisonment was the only appropriate penalty.

DEFENCE SUBMISSIONS

On behalf of the offender, Mr Wendler of counsel similarly submitted helpful written submissions which he supported in oral submissions. Mr Wendler reminded the Court that the additional offences on the Form 1 and the uncharged acts deprived the offender of leniency and explained the origins and extent of the sexual relationship between the offender and his sister.
I should note in passing, of course, that the matters on the Form 1 operate to increase a sentence pursuant to the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146.
Mr Wendler invited the court to an overview of the offending conduct which he described as "the offender's sexual curiosity and familiarity with the victim [which] progressed to regular habituated, episodic, sexual molestation."
He described the offender having a "teenage desire for carnal exploitation and gratification". Mr Wendler recognised the circumstance of the offence occurring in the victim's home and the ongoing damage and emotional harm visited upon the victim.
However, while the Crown's submission was "the absence of a compelling subjective case", which had been included in the Crown's written submissions prior to the service of the references and calling of evidence, Mr Wendler submitted that the offender's subjective circumstances were "powerful and compelling".
He submitted that the offending occurred "opportunistically" notwithstanding its repetition. On behalf of the offender he pointed out, in contrast to many of the other cases, that the age difference was only 4 years. With respect to objective seriousness, he pointed out that there was "no penile/vaginal coitus".
Mr Wendler focused on the powerful subjective case and indicated that the offender's daughters are now aged 30, 28, 25 and 21 respectively. They have each grown up and left home.
The offender now lives with his wife and two stepsons who are aged 19 and 16. The mortgage to the National Australia Bank with respect to the family home is $2,400 per month. The loan would be unable to be serviced in the event of full-time incarceration. Mr Wendler indicated that the offender's parents are now 77 and 75 years of age, and in the circumstances of what occurred with his father's conviction, his parents are now apparently separated and the offender has no relationship with his father.
In Mr Wendler's submission, the sentencing Remarks in R v DW (No 1) [2020] NSWDC 461 were described as "instructive". In Mr Wendler's submission, the offending conduct in DW concerned two victims, the victims were not siblings of the offender and the discount available was less favourable than to the present offender.
Mr Wendler pointed out that the current offences were not "children's serious indictable offences" and that the length of the delay should properly be regarded as a mitigating factor. In the ultimate, Mr Wendler submitted that a similar outcome to that in DW should be the appropriate disposition of the matter.

COMPARATIVE SENTENCES AND APPROACH TO SENTENCING

While the maximum penalty which was applicable to the offence at the time of offending operates as a guide or yardstick in the imposition of an appropriate sentence, the Court is required to apply the current approach to sentencing for similar offences (see s 25AA of the Crimes (Sentencing Procedure) Act).
In the Crown's written submissions, it was suggested that the previous application of sentencing law meant that in many matters where child offenders were dealt with for s 66C offences many years after the offence, non-custodial sentences had been imposed.
The Crown's submissions make reference to Young (a pseudonym) v R [2022] NSWCCA 111 and R v DW (No 1) [2020] NSWDC 461 in this regard. While I will refer to the detail of those cases later in these remarks, I should observe immediately that the matter of Young (a pseudonym) did not result in a non-custodial sentence. A substantial term of imprisonment was imposed at first instance, and the Court of Criminal Appeal allowed an appeal against manifest excess and reduced the term of imprisonment. The offending conduct had occurred approximately 20 years earlier. The matter of Young does not support the proposition for which it was said to be referred.
The matter of DW (No 1) was a sentence passed in 2020. While I will refer to it in more detail later in these Remarks, it was a matter which did result in a non-custodial sentence.
However, DW was a sentence passed after the introduction of s 25AA and in full recognition of the change in the law to appropriate sentencing practices. It was not the subject of any appeal by the Crown and it is relied upon by Mr Wendler in these proceedings. It is not an illustration of a "past" or "previous" approach to sentencing.
The Crown submits that the pattern of sentencing to which they purported to refer now appears to be changing. The Court was referred specifically to the Judicial Commission Statistics with respect to offences under s 66C(1) for offenders aged between 14 and 17 years of age. The number of cases is extremely small. There are four cases dealt with at law since the sentencing reforms of September 2018, and all four resulted in full-time custody. An examination of those four cases to the extent that the details are recorded in JIRS, reveals that the offences had occurred with substantially less delay than the matter before this Court. The delays in those four matters between the offence and sentence were respectively, approximately 2 years, 5 years, 6 years and 7 years. The fifth matter recorded in the Judicial Commission Statistics for an offender aged between 14 and 17 years had a delay of slightly less than 3 years and was dealt with in the Children's Court by means of a Suspended Control Order. Clearly, that did not involve full-time custody.
If one looks at the statistics for the same section, prior to the post-reform statistics, only 11 out of 21 cases resulted in full-time custody, i.e. 52.4%. Six cases, or 28.6%, received suspended sentences and four cases, or 19%, were dealt with in the Children's Court. Three received probation and one a Suspended Control Order.
If one looks at the post-sentencing reform figures for all offenders, a total of 93 cases, in 81 cases (or approximately 87%) the result was full-time custody. Approximately 13% resulted in non-custodial outcomes.
R v DW (No 1) involved two child victims. The offender was 15 years of age when he committed the offences. The first victim was 11 years of age and the offender pleaded Guilty some 30 years later to one count of attempting sexual intercourse with her, contrary to s 66D of the Crimes Act 1900 (NSW). He also pleaded Guilty to one count of sexual intercourse with the child contrary to the provisions of s 66C(1). The second child was under 10 years of age, and a plea of Guilty was entered with respect to one count of indecent assault, contrary to s 61M(2) of the Crimes Act. Additional acts of indecency were included on a Form 1 with respect to the first child.
In the course of the judgment in DW, the change in community attitudes to child sexual assault was specifically recognised, as was the common law recognition of the harm done to victims which had subsequently been given statutory effect, see [40] to [53].
The offences charged against DW were not children's serious indictable offences. At the time of sentence, DW was 44 years of age. He had been married for 17 years and had three children, one son and two daughters. He was the sole breadwinner for the family and evidence was called and references tendered which established that he had led a blameless and exemplary life since the time of the offences which had occurred when he was an immature teenager.
The judgment in DW closely examined the significance of a lengthy delay between offending conduct and a matter coming before the court for sentence. In that particular matter, the decision of R v Cattell [2019] NSWCCA 297 was examined in detail (see [130] to [161]).
Price J in Cattell had set out guidance for first instance sentencing judges with respect to the fixing of a sentence for "an old child sexual offence", as described, which falls within s 25AA of the Crimes (Sentencing Procedure) Act. In dealing specifically with the question of delay in sentencing offenders who were children at the time of the offences, Price J made reference to a number of cases.
In RL v R [2015] NSWCCA 106, the offender had been aged between 14 and about 20 or 21 years of age when he committed a series of sexual offences against younger relatives. The offending had occurred between 1981 and 1987. No complaint had been made about any of the offending until about 2013. I propose to set out the analysis of RL v R which was undertaken in DW which is set out from [165] to [183].
The offender had appeared for sentence in February 2014. Between the last offending in 1987 and the time that he appeared for sentence in 2014 the offender had led an exemplary life. The Court, comprising Basten JA and their Honours Simpson J and Adamson J, said at [6]: "Sentencing in a case of this kind is fraught with difficulties, both in terms of principle and technicality. So far as principle is concerned, there is an anxious tension between the need for public condemnation of the conduct involved and the vindication of the dignity of the victims, on the one hand, and on the other, the imposition some 30 years after the events, of penal consequences on an offender who has led a subsequently blameless life and has readily acknowledged his own wrongdoing, when confronted with the complaints."
One of the difficulties confronting the sentencing judge in RL had been that a number of the offences had been committed when the offender was under 16 years of age, some others between that age and 18 years, and yet other offences after he had become an adult.
The fact that the offences committed when the offender was a child were not "serious children's indictable offences" and recognition of the probability that they would have been dealt with by a Children's Court, even if there had been a delay of some years in charging him, gave rise to a consideration of what would have happened to him had he been charged at the earlier point in time. Of course, I note in 2015 a sentencing court was obliged to give consideration to sentencing patterns and practices at the time of the offence.
However, a possible or likely outcome on sentence as a result of the special statutory provisions applying to children, in the event that the matter had been prosecuted earlier, also gave rise to a separate consideration of the effect of delay. The Court in RL noted at [46]: "…there is a high level of tension in relation to sentencing offenders years after the events which constitute the criminal conduct, in providing adequate punishment, giving some effect to general deterrence, denouncing the conduct of the offender and recognising the harm done to the victim, in circumstances where there is no palpable risk of reoffending, no need to deter the offender, no need to protect the community from the offender nor to promote the rehabilitation of the offender. The somewhat unusual circumstances, where the offending was undertaken during adolescence and very early adulthood, rather than the more common examples of an adult preying on young children, give confidence to a finding that the applicant is most unlikely to reoffend."
In the event, in RL the Court of Criminal Appeal upheld the challenge to the severity of the aggregate sentence which had been imposed at first instance notwithstanding that a number of the offences involved forced sexual intercourse without consent and that some offences had occurred when the appellant was an adult.
However, a non custodial sentence was not a realistic option. Whilst there was, of course, no appeal lying directly with respect to the indicative sentences underlying the aggregate sentence imposed, the Court of Criminal Appeal, amongst other errors they found having been made by the sentencing judge, held that the indication in the indicative sentences of not insubstantial terms of imprisonment with respect to some of the offences by the judge at first instance were themselves reflective of error.
In place of the indicative terms of imprisonment for the three offences, counts 1, 2 and 7, which had occurred when the offender was 14 and 15 years of age, the Court concluded that an indicative sentence which did not involve a full time custodial penalty should be adopted. Those offences included two indecent assaults, including five additional matters on a Form 1, and an offence of sexual intercourse without consent.
More recently, in September 2018 and shortly after the introduction of s 25AA, the District Court in Wollongong dealt with an offender who had sexually assaulted his stepbrother over a period of about four or five years: R v SW NSWDC (unreported) 10 September 2018 per Haesler SC DCJ. The sexual assaults had commenced in 1998, at which time the offender was 11 years of age and the victim was six. The offending conduct continued until 2002, by which time the offender was 16 years of age and his victim had turned 11. The offender was originally charged with approximately 30 offences and the matter proceeded by what the first instance judge described as "representative charges".
The matter came before the District Court when the offender was 32 years of age. The substantive offences for sentence were three counts of aggravated sexual intercourse without consent with a person under the age of 16, for which the maximum penalty was 20 years imprisonment. A further three offences of aggravated indecent assault, together with a count of assault with an act of indecency, were also before the Court as substantive counts. An additional three counts of aggravated indecent assault had been placed on Form 1 documents.
Haesler SC DCJ considered s 25AA and said: "I do not read into s 25AA any intent to displace the rules that apply to the principle of delay because that practice of taking into account long delay applies now, as it did back then. It remains a relevant sentencing consideration. Similarly, I am sentencing this offender as an adult for offences he committed as a child. I do not read, and I do…"
I think the word "not" has been omitted from the draft judgment which I have had access to - "… I do [not] believe that I am obliged to read into s 25AA that sentencing patterns and practices at the time of sentencing prohibit my taking into account, as general principle requires, that these offences were committed by a child on another child. Those principles still apply to these proceedings."
Notwithstanding the fact that there had been a delay of some 16 years with respect to offences committed by a child upon a younger child, taking into account all relevant matters the learned and experienced sentencing judge found that there was no alternative to a period of full-time imprisonment. A total of 3 years imprisonment with a non-parole period of 18 months was imposed.
The offender appealed against the severity of that sentence. The Court of Criminal Appeal granted leave to appeal because it concluded that the issue concerning delay and offending as a child was significant enough to warrant the grant of leave.
The Court, per Davies J with whom Bathurst CJ specifically agreed with his reasoning, and also Bell P (as his Honour the Chief Justice then was), made no criticism of the analysis of s 25AA by his Honour Judge Haesler. The Court specifically noted Judge Haesler's references to the section and said at [34]: "His Honour rejected any suggestion that s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) was intended to displace rules that apply to the principle of delay. Nor, his Honour said, did s 25AA prohibit him from taking into account that the offences were committed by a child on another child. His Honour noted further that had the applicant been dealt with as a child, a different sentencing regime would have applied to him, a regime with greater focus on rehabilitation than the retributive regime that applies to an adult."
The Court of Criminal Appeal also noted the remarks of the sentencing judge with respect to the application of principles relating to the sentencing of young offenders. Davies J made reference to those remarks and said, in respect of Judge Haesler's remarks on sentence, at [36]: "His Honour said (at ROS 8): I also have to, so far as I am able, apply principles that relate to the sentencing of young and immature offenders. …The fact that the offences occurred as a child does not minimise their objective seriousness, but I recognise that there is a vast difference between a young immature offender committing offences when they are not neurologically able to think as an adult and when one comes to sentence a mature adult who offends against a child. The child's criminal actions, even sexual actions, are generally not regarded as being as morally reprehensible as if the offences had been committed by an adult."
Davies J further went on, referring to Judge Haesler, and said: "His Honour said (at ROS 13): There are a number of important factors in this case. The delay, the fact that the offender was himself a child at the time, requires a sentence which by comparison with that which would have been imposed on an adult, might be considered lenient."
The Court of Criminal Appeal noted what was described as a number of significant matters which warranted the view that indeed there had to be a period of full-time imprisonment. These included the fact that there were three counts of aggravated sexual intercourse without consent committed on a 10- or 11-year-old victim, for which the maximum penalty for each offence was 20 years imprisonment. The second significant matter was that the charges were representative offences, in circumstances where the offending had commenced when the complainant was only six years of age. The third significant factor was that the offending had involved a degree of coercion. A fourth significant factor was that the offender had not led a blameless life since the index offences.
Davies J pointed out at [42] to [44]: "Between 2004 and 2013 he has been convicted of a number of offences, including offences of violence (assault occasioning actual bodily harm being the worst) drug offences, two offences of driving whilst disqualified and two offences of contravening an apprehended violence order. Those last two offences demonstrate contempt for the orders of the courts, quite apart from disobedience of the law. The applicant has been placed on conditional liberty on a number of occasions. He has been called up more than once for breaching that conditional liberty and in 2006 was sentenced to three months imprisonment for breaching conditional liberty in respect of three offences, as well as for his second offence of drive whilst disqualified. It may be accepted that there has been no subsequent sexual offending, but his criminal record shows that his disregard for the law was not the product of mere immature offending. One of the principal reasons for mitigating a sentence in the case of extended delay is because of the weight that has to be given to the applicant's rehabilitation in the meantime: R v Todd (1982) 2 NSWLR 517 at 519. That basis is largely absent here, at least until 2013."
Accordingly, understanding the issues of delay and offending as a child having warranted a grant of leave, the appeal itself, however, was dismissed.
It is important to bear in mind an appropriate distinction with respect to consideration of matters of delay and the question of an offender's youth at the time of offending.
In the ultimate, the Court in DW was not satisfied that the section 5 threshold was crossed. A conviction was recorded and Community Correction Orders were imposed with respect to each of the offences. There was no Crown appeal alleging inadequacy.
A matter which had a tortuous judicial history, Paul Campbell (a pseudonym) was initially the subject of a sentence before his Honour Judge Berman SC in the District Court. I will set out the detail of the analysis of what happened to "Paul Campbell" shortly. It is of some comparative significance, because ultimately, it resulted in a sentence being imposed after the introduction of s 25AA by Judge Huggett, as the Chief Judge then was. I reproduce the analysis of Campbell which I set out in R v DW from [186] to [212].
The matter of Paul Campbell (a pseudonym), though initially dealt with in the District Court prior to the introduction of the sentencing reforms, ultimately came back to the District Court for resentencing after the reforms of 2018.
Campbell was a boy of 13 years of age in October 2016 when he committed a series of serious sexual assaults on his female cousins, who were 6 and seven years of age respectively. He committed three acts of sexual intercourse on the 6-year-old, including digital penetration, cunnilingus and fellatio. Each of those offences carried a maximum penalty of life imprisonment. Two additional offences of aggravated indecent assault with respect to the same girl were also originally charged. With respect to the second victim, who was 7 years old, an additional charge of indecent assault was preferred.
The matter was first dealt with in the District Court before his Honour Judge Berman SC: see R v Campbell (a pseudonym) [2017] NSWDC 359. Two of the offences of actual intercourse with a child under ten, carrying a maximum penalty of life imprisonment, were on the indictment which was presented, whilst a third charge relating to such conduct and also carrying a maximum penalty of life imprisonment, had erroneously been placed on a Form 1. Such a course was prohibited by s 33(4)(b) of the Crimes (Sentencing Procedure) Act. This problem was not identified at the time by the legal representatives nor by the sentencing judge. The other charges of aggravated indecent assault against the six-year-old victim were also on the Form 1. The indecent assault on the second victim was charged substantively.
The sentencing judge gave indicative sentences of 12 months and ten months for each of the acts of sexual intercourse and four months for the indecent assault. Judge Berman proceeded to impose an aggregate sentence of 16 months, with a non-parole period of eight months. He directed that the sentence be served as a juvenile offender in a juvenile detention centre. His Honour directed that a conviction was not to be recorded.
The child offender appealed to the Court of Criminal Appeal: Paul Campbell v R [2018] NSWCCA 87. The defect in the proceedings below with respect to the inclusion of a matter carrying a maximum penalty of life imprisonment on a Form 1 was identified by the Crown and conceded. Leave was given to include this as an additional ground of appeal.
Notwithstanding the Crown's submission that the original grounds of appeal should be rejected, the Court proceeded to hear argument with respect to them in order to determine whether to proceed to resentencing or whether to remit the matter to the District Court.
Before turning to the grounds of appeal, Hamill J, with whom Bathurst CJ and Schmidt J agreed, said at [20]: "It is worth emphasising that the criminal law in Australia treats children differently to adults who commit criminal offences. This is the result of the common law, legislation and, to a lesser extent, an international treaty to which Australia is a party. The critical statute in New South Wales is the Children (Criminal Proceedings) Act 1987."
Hamill J then set out various of the principles and presumptions of law applicable to sentencing a child offender. His Honour noted that two of the offences for which the appellant had been sentenced fell within the definition of a "serious children's indictable offence" and that, accordingly, they were required to be dealt with according to law.
His Honour further noted that the fact that the child was to be dealt with according to law did not displace the general provisions of the Children (Criminal Proceedings) Act concerning the treatment of children under the criminal law. The central provision in that legislation was, and is, s 6: 6 Principles relating to exercise of functions under Act A person or body that has functions under this Act is to exercise those functions having regard to the following principles- (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind, (f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties, (g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions, (h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.
His Honour noted at [30] the judgment of Kirby J, who had dissented in the outcome in R v Elliott and Blessington [2006] NSWCCA 305; 68 NSWLR 1, and then said this: "In R v Elliott and Blessington, Kirby J (dissenting in the outcome) observed that 'a jurisprudence has developed in the context of sentencing young offenders, which recognises the important differences, in terms of responsibility, between adults and children.' His Honour referred to Slade v The Queen, where the New Zealand Court of Appeal appeared to accept the following opinion of a psychologist: `It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults. Adolescents have difficulty regulating their moods, impulses and behaviours. Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents' decision-making capacities are immature and their autonomy constrained.'"
Hamill J also made reference to MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93, a decision of Adams J, which had identified two of the reasons that the youthfulness of an offender was considered to be a significant factor in sentencing. Adams J had identified the first significant point as substantial public interest in the rehabilitation of young offenders and the second being that immaturity is relevant to culpability or criminality because "children do not have adult value judgments, adult experience or adult appreciation of consequences".
Hamill J then proceeded to deal with the first ground of appeal, which was that the sentencing judge, Judge Berman, had erred in ruling that the Crown's concession in the sentence proceedings that a sentence other than full-time custody was "within range", was "wrong in sentencing principle".
Reference had been made at first instance to RP v R [2015] NSWCCA 215, in which a careful analysis of the comparable cases referred to in the judgment demonstrated that serious sexual offending committed by children as young as the applicant did not necessarily result in full-time incarceration.
Hamill J said at [38]: "It is unnecessary to examine in great detail the comparative cases because, as the Crown submitted at first instance, and the parties agreed on the hearing of the appeal, each case necessarily turns on its own facts. However, the comparable cases do demonstrate that there is considerable flexibility in sentencing young offenders even where, as here, had the sexual offending been committed by an adult an extremely long sentence of full-time imprisonment would be imposed. The comparable cases included examples of serious sexual offending which did not result in the imposition of full-time custodial sentences. In other cases, sentences of full-time imprisonment imposed on young offenders resulted in successful appeals and resentencing whereby the applicant was immediately or soon released from custody."
Hamill J went on to find that the reference to "wrong sentencing principle" articulated by Judge Berman must have been the application of general principles to the sentencing outcome in the particular case. Hamill J said at [40]: "Needless to say, this is not a 'sentencing principle' in any real sense. If his Honour meant by this remark that there was a sentencing principle that children charged with offences of this kind and seriousness could never escape a full-time custodial sentence, his Honour fell into error."
Ground 1 was, accordingly, upheld.
The second ground of appeal, namely that the sentencing judge erred in failing to consider an alternative to full-time custody, was also upheld. Additional grounds relating to the sentencing judge having erred in assessing the seriousness of the offence and in finding that the applicant had used his position as a trusted family member to commit the offences were, on the specific facts of that case, also upheld.
In addition to these various grounds being upheld, the appeal was also upheld on the basis of the added ground in relation to the inclusion on the Form 1 of the offence which carried a maximum penalty of life imprisonment.
In determining an appropriate disposition of the appeal, Hamill J dealt with complications that had arisen in part as a consequence of a decision by the New South Wales Director of Public Prosecutions that it was likely that the digital penetration sexual intercourse charge, which had originally been included on the Form 1, might proceed separately. His Honour was of the view that it was undesirable that the applicant be subject to re-sentencing in the Court of Criminal Appeal and then later be brought before the District Court on that additional and closely-related charge. However, before remitting the matter to the District Court, Hamill J indicated that he was satisfied that a less severe sentence was warranted and ought to have been imposed.
On the material before the Court of Criminal Appeal, his Honour expressed the opinion that he was satisfied, having considered all possible alternatives, that a sentence of imprisonment was the only sentencing option. However, in accordance with the then applicable law, his Honour said that if he were inclined to re-sentence, the sentence imposed would be substantially less than 2 years and his Honour would order that any such sentence be suspended under s 12 of the Crimes (Sentencing Procedure) Act.
As I indicated earlier, both the Bathurst CJ and Schmidt J agreed with Hamill J's reasons. The order for removal to the District Court was made on 4 May 2018.
The matter of resentencing having been remitted to the District Court, the Director of Public Prosecutions added the additional charge of sexual intercourse with a child under ten to the original substantive charges. The original offences, together with the additional charge, then proceeded to sentence in the District Court before her Honour Judge Huggett (as her Honour the Chief Judge then was) on 13 December 2018.
As well as the additional charge carrying a maximum of life imprisonment, her Honour was required to proceed in light of the amendments to the Crimes (Sentencing Procedure) Act which had taken effect earlier that year (in September 2018). Of particular significance was that, by the time her Honour came to pass sentence, suspended sentences pursuant to s 12 of the Crimes (Sentencing Procedure) Act were no longer an available sentencing option.
Her Honour Judge Huggett made reference to the considerable focus which needed to be given to any rehabilitation to date and the capacity of a child to reform and the desirability of reform. Her Honour noted that the weight to be afforded to youth does not alter simply because the young person has been convicted of the serious offence. Her Honour said that where immaturity was a significant factor in the commission of an offence or offences, the criminality involved will be less than if the same offence was committed by an adult.
After referring to a number of matters specific to the offender, her Honour concluded that she was satisfied that his prospects of continued rehabilitation were very good and that his risk of reoffending was low. Her Honour noted that the fact that two years had passed since the commission of the offences was a relevant factor and that the delay in the matter coming back for sentence had ultimately created some very significant adverse effects. One of those was that, as a result of the legislative changes, the options available to the Court were less favourable to the offender than they were at the time he was originally sentenced. In particular, the fact that suspended sentences were no longer available and that he had made further progress towards rehabilitation were seen to be important factors.
Her Honour Judge Huggett concluded that although the type of sentence, that is substantially less than two years and suspended, which had been postulated by Hamill J, may well have been appropriate as at December 2017, things had changed since that time in significant ways, particularly with respect to further steps taken towards rehabilitation and the sentence warranted by the Court of Criminal Appeal, Judge Huggett found, at the time the matter came before her, was no longer warranted.
Her Honour concluded that as a custodial sentence was no longer the only appropriate sentence, she proceeded to impose, in lieu of sentences of imprisonment, Community Correction Orders with respect to each of the offences, including the additional offence which carried a maximum penalty of life imprisonment. Her Honour did not consider it necessary for any conviction to be recorded and, being satisfied that he did not pose an ongoing risk to the lives or sexual safety of one or more children in the community, she declined to make a registration order. I am informed that there has been no appeal against that judgment.
In light of the Crown's reliance upon R v Young (a pseudonym), I indicated that I would look more closely at the detail of that matter. The victim in that matter was a Ward of the State. She and her sister were placed into the care of the Department of Community Services (DoCS) and placed in a variety of foster homes. In due course, she was placed to live with her grandfather. The offender, "Steven Young", was some 5 years older than her and also lived at that home. The victim was physically and sexually abused in the family home by both her grandfather and also the offender.
The victim was 9 years of age when sexual acts between her and the offender first occurred. The first count for sentence arose during an incident when the offender placed a piece of rubber shaped like a hose into the victim's vagina while at the same time masturbating himself. That act was placed on a Form 1.
An act of fellatio until ejaculation was the first substantive count.
The second incident again involved the insertion of a piece of rubber hose into the victim's vagina. Again, that offence was placed on a Form 1.
The insertion of his fingers into and stretching her vagina was the second substantive count of sexual intercourse.
The next count arose from the attempted insertion of his penis into her vagina. The victim suffered pain and screamed and screamed as a consequence.
The offender then inserted his penis into her mouth. This was similarly placed on a Form 1.
The sentencing judge found that the offences occurred in the context of gross dysfunction in the family, including sexual and other violence by the offender and also others. The offender had been groomed by her grandfather prior to the abuse committed by the offender.
At first instance, Judge Haesler posed a number of considerations with respect to sexual offending involving the penetration of an even younger child. His Honour gave specific consideration to the question of rehabilitation. It would appear that the offender had committed many other offences although none of them involved sexual offending. His Honour described the offender as having "some capacity to lead a normal community life but there is a regular cycle of self-destructing and self-sabotage." (R v Young (a pseudonym) [2021] NSWDC 702 at [29]).
In all of the circumstances, his Honour found that the s 5 threshold was crossed. An aggregate sentence of 3 years with a non-parole period of 1 year and 6 months was imposed on 20 July 2021. The offender had gone into custody some considerable time earlier for other matters. The sentence imposed by Haesler DCJ was backdated to commence from 9 February 2021. He was eligible for release to parole on 8 August 2022.
An appeal against the severity of sentence did not come to the Court of Criminal Appeal until 27 May 2022. The Court briefly reserved and leave to appeal was granted and the appeal allowed on 3 June 2022.
In the leading judgment which was delivered by N Adams J, with whom Bell CJ and Button J agreed, her Honour noted that the delay between offending and the laying of charges was some 16 to 17 years. Her Honour observed that once the offender turned 21 the opportunity for him to be sentenced in the Children's Court had been lost. Her Honour referred to the offender's criminal history which included offences of driving whilst disqualified, aggravated break, enter and steal, breaching Apprehended Violence Orders, assaults, intimidation, affray, possession of prohibited drugs and destroying property.
The offender had been imprisoned for various periods in 2009, 2010, 2011, 2012 and 2013. He had then been sentenced in 2017 for 6 months. He then went into custody in August 2020 and had remained in custody since that time. He had ultimately been sentenced for various offences the non-parole period of which expired on 10 April 2021.
This of course explained the commencement date of the sentence imposed by Judge Haesler.
On appeal it was contended on behalf of the offender that the finding of the s 5 threshold having been crossed was an error by the sentencing judge. Judicial Commission Children's Court Statistics indicated that the sentencing of juveniles at a time when the maximum penalty was now 16 years, as opposed to 8 years when the offences were committed, resulted in only one third of the offenders receiving full-time custody.
In dealing with the appeal, her Honour Justice N Adams said at [35]: "The factor of delay was significant in this matter. Not only was the fact of delay relevant, so too was the extent of it."
Her Honour noted that the Crown had accepted on the appeal that although the applicant was not to be sentenced as if he were in the Children's Court, "that lost opportunity was an ameliorating factor on sentence." Her Honour made reference to the observations of McClellan CJ at CL in KT v R [2008] NSWCCA 51 at [52] and also the observations of Hamill J in Paul Campbell (a pseudonym) to which I have already made reference in these Remarks.
Amongst other factors flowing from the delay which was set out by N Adams J, was that if the offender had been sentenced in the Children's Court, he would not have had a criminal history at the time of the offences. This would have been a mitigating factor. However, because he had a criminal history at the time of sentence, he had been denied the opportunity to come before the Court as a person of good character. He was accordingly unable to demonstrate progress towards rehabilitation.
Her Honour said that it was not only the fact of the delay until he turned 21 that was relevant. Her Honour expressed the view that the extent of the delay after he had turned 21 had also had a significant impact on the sentencing options open to the sentencing judge.
The first impact was that he could have been sentenced before the commencement of s 25AA which was introduced in August 2018. Had the complaint been made prior to that time, the offender would have had the benefit of being sentenced on the basis of sentencing principles and the approach to sentencing at the time of his offending. Her Honour noted that standard non-parole periods were not introduced until 2015.
The second significant impact by virtue of the delay, in the judgment of N Adams J, was the changed statutory sentencing regime introduced after September 2018. This had removed suspended sentences as an alternative for all offenders and had also removed the availability of an Intensive Correction Order for sexual offenders. As N Adams J noted at [49]: "Had the applicant been sentenced at any time after he turned 21 but before 24 September 2018, it would have been open to the sentencing judge to have found that the s 5 threshold had been crossed but to have imposed either a suspended sentence or an ICO to assist in his rehabilitation."
Her Honour noted that before Judge Haesler, although it had not been expressly conceded that the s 5 threshold had been crossed, it had never been suggested to the sentencing judge that it was not.
Her Honour gave detailed consideration to the nature of that factor and concluded that she was not satisfied that error was disclosed in the circumstance of the sentencing judge finding that the s 5 threshold was crossed.
However, her Honour went on to determine that the period of full-time custody which had been imposed was manifestly excessive. Her Honour was satisfied that a lesser period of imprisonment was warranted, and in proceeding to resentence the Court of Criminal Appeal sentenced the offender to an aggregate sentence of 2 years with an aggregate non-parole period of 16 months.
It is important to note that the aggregate non-parole period imposed in the Court of Criminal Appeal accordingly expired on 3 June 2022, the very date of the appeal being determined. The offender was entitled to be released immediately.
In R v DB, an unreported decision of Judge Baly SC (Campbelltown District Court, 10 November 2023) the offender had pleaded Not Guilty to 18 counts of sexual offending which were alleged to have occurred when he was 14 years of age. A jury of 12 returned verdicts of Guilty after a trial at Goulburn District Court in June 2023. 16 counts were contrary to s 66C(2) of the Crimes Act 1900, namely sexual intercourse with a child above the age of 10 and under 14, in circumstances of aggravation, namely that the victim, the offender's cousin who was aged 11 or 12, had a cognitive impairment. The victim had a form of cerebral palsy known as spastic diplegia.
Each such offence carried a maximum penalty of 20 years imprisonment. One other count was of an attempt to commit the same offence which similarly carried the maximum of 20 years imprisonment. The last offence which resulted in a Guilty verdict was inciting a person under 16 to commit an act of indecency with a maximum penalty of 5 years imprisonment.
Her Honour Judge Baly SC made reference to R v AA [2017] NSWCCA 84 in which Beech-Jones J, as his Honour then was, Leeming and R A Hulme JJ agreeing, said: "The age of a young offender who commits child sexual assault offences may bear upon an assessment of the objective seriousness of the conduct."
Her Honour accepted that if such offending had been committed by an adult, stern sentences involving full-time imprisonment would inevitably follow. The offender had no criminal record and was a person of subsequent good character. Her Honour suspected that the offender was truly remorseful for what he did but was unable or unwilling to admit the offences, and of course had pleaded Not Guilty. He had not, in such circumstances, demonstrated any remorse. Her Honour found, however, that his risk of re-offending was extremely low.
Her Honour examined in detail the consequences of the delay of some 14 years. While required to sentence in accordance with current sentencing patterns and practices, Judge Baly SC found the offender was entitled to rely on the very real and significant disadvantages he had suffered as a result of the delay. Her Honour found that the question as to whether the section 5 threshold was crossed was difficult and finely balanced.
Judge Baly SC made reference to BM v R [2019] NSWCCA 223, where four separate offences under s 66A and s 61M(2) had resulted in a sentence of imprisonment, notwithstanding that the appellant had been 13 at the time of the offending.
Her Honour also referred to R v AB [2022] NSWCCA 3 which had resulted in a Conditional Release Order without proceeding to conviction.
Her Honour made specific reference to R v DW (No 1) and also to R v Andrew Button (a pseudonym) [2021] NSWDC 829. In both cases, the outcome was a Community Correction Order. A similar result was obtained in R v DN [2019] NSWDC 536 to which Judge Baly SC also made reference.
In the ultimate in R v DB, her Honour Judge Baly SC sentenced DB to a Community Correction Order for a period of 3 years. While a Notice of Intention to Appeal against his conviction was lodged by DB, no appeal against the sentence has been lodged by the Crown.
Before leaving comparative cases, I want to return briefly to the significance of delay in such types of matters.
In giving consideration to the significance of delay, I make reference to one case from interstate in which Chief Justice de Jersey of the Queensland Supreme Court articulated principles touching upon the offending of children against other children and the principle and consequences of delay. I, of course, note that the legislation under which these comments were made in Queensland operate differently to the situation in New South Wales and indeed that there is specific legislation in Queensland under their Juvenile Justice Act requiring a sentencing court, statutorily, to recognise circumstances of sentencing which would have been imposed if the person were still a child.
In R v PGW [2002] QCA 462;134 A Crim R 593, an appeal against severity where a sentencing judge had imposed a term of imprisonment which was wholly suspended and a conviction was recorded, de Jersey CJ said: "But it does seem to me that insufficient attention was given to what I regard as the unique aspect of the case, and that is that both actors - the offender and the victim - were, in law, children. It is a very unusual case in that it concerns the prosecution, after 20 years or so, of a person who was but an adolescent at the time of offending. The case has no relation to the prosecution, even after many years, of adults who prey on children. This is a case where, had the applicant been sentenced as a child, he would not have been placed into custody."
His Honour the Chief Justice continued: "The question which the sentencing Judge should have addressed was why therefore should the applicant now be sentenced to a term of custody, albeit suspended. It was accepted that the applicant has not subsequently been convicted or subsequently misconducted himself and, as it was put, that he should be taken as fully rehabilitated. While it is true that the sentencing Judge, from her perspective, knew a matter which would not have been known had the applicant been sentenced as a child, that is the serious effect on the victim, and that is not to be overlooked or understated, the fact is that it is highly unlikely that a 15 year old boy who, as put by the sentencing Judge, was sexually experimenting with the younger victim, would reasonably have foreseen such consequences for him. Now, it is also true that society rightly and reasonably expects punitive and deterrent responses from the Court in cases of sexual misconduct, but this case is, as I have said, unique for the circumstance that both offender and victim were, at the time, in law, children and, in development, comparatively immature."

CONSIDERATION

The offender is to be sentenced for one count of sexual misconduct which occurred in December 1991 when he was 16 years of age. The victim was 12. The Court is asked to take into account the two offences on the Form 1, which I will do, being an act of indecency on the same occasion and the subsequent offence sometime after December 1991 at an indeterminate precise time during the period somewhat less than two years later. As I have already indicated, the Crown acknowledges that whatever precise time that offence occurred, the offender is taken to have still been a child.
The Agreed Facts indicate uncharged acts which are relied upon as context. It is important to recognise the limited relevance that those uncharged acts have to the sentencing exercise. In Featherstone v R [2008] NSWCCA 71, Bell J noted at [74] that: "the significance of the circumstance in sexual cases that particular offences may be representative of a pattern of sexual misconduct is to deprive the offender of a submission that the offences were isolated lapses."
The uncharged conduct does not serve to increase the objective seriousness of the individual offence before the Court. He is not to be sentenced for what might be considered other offending in respect of which he has not been charged and tried.
As I have already indicated, however, the two matters on the Form 1 document are to be taken into account in accordance with Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146.
In the present matter, the delay of what is now some 33 years between the commission of the principal substantive offence and the proceedings in this Court is a matter of considerable significance. Each of the factors identified by N Adams J, to which I have referred in detail earlier, have application.
There is a tension between the necessity to bear in mind a maximum penalty which was in effect in 1991 and which operates as a guidepost or yardstick in the determination of an appropriate sentence, and the requirement pursuant to s 25AA of the Crimes (Sentencing Procedure) Act 1999 to sentence the offender for child sexual offences in accordance with sentencing practices and patterns at the time of sentence.
Current sentencing practices and patterns are affected by an increased maximum penalty, in some instances the introduction of a standard non-parole period and, of course, by changed attitudes with respect to the seriousness of the offences and recognition of the ongoing lifelong effects of early exposure to sexual abuse. Notwithstanding observations of the common law previously, the offender must now be sentenced specifically in accordance with s 25AA(1) and I expressly note that the court must have regard to the trauma of the sexual abuse on the victim, who was a child at the time of the offences perpetrated upon her.
In the present matter, rehabilitation is no longer a forward-looking consideration. The offender has had no other or prior interaction with the criminal justice system and is a person of exemplary good character. The delay has deprived him of the opportunity of the matter being dealt with as a child, or as an adult prior to the sentencing reforms, and of sentencing options which would have been available had he been so dealt with either as a child or as an adult prior to 2018. While he has been able to enjoy the appearance of good character as a consequence of the offending not having been revealed at an earlier point in time - and I note int that regard the observations of Price J in Cattell - he has also, as I have indicated, clearly demonstrated full rehabilitation as an upstanding member of the community. He is a married father with children and his daughter has provided a glowing reference regarding the morally upstanding character, as she has observed it, of her father.
I note his expressions of remorse, which, despite the misgivings articulated by the Crown, I accept.
It is important that the court not fall into the error which Price J held had occurred at the first instance sentencing exercise in Cattell, that is, elevating subjective matters and matters of rehabilitation over the importance of general deterrence for offending of this kind.
I have ultimately come to the view that the appropriate recording of a conviction and the imposition of a Community Correction Order will give adequate deterrent effect to the necessity of recognising the importance of general deterrence.
RT, you are convicted of the offence before me.
Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order for a period of 3 years.
The standard conditions of the order will apply. First, you must not commit any offence. Second, you must appear before the Court if called upon to do so at any time during the term of the order.
I impose an additional term that you are to undertake 200 hours of community service.
I should make clear to you that if you fail to comply with the conditions of the order, further action may be taken against you. This may require you to return to court to be resentenced.
Finally, you are directed to attend the Court Registry, where a copy of this order will be explained and given to you.
Mr Wendler of counsel, in his written submissions, submits that in all of the circumstances the Court should make an order that the offender not be treated as a registrable person in respect to the offence to which he has pleaded Guilty. It is submitted that he satisfies the requirements set out in s 3C(3)(a), (b), (c) and (d) of the Child Protection (Offenders Registration) Act 2000.
I make reference to my reasoning in R v DW (No 2) [2020] NSWDC 462, which I do not repeat.
In the circumstances set out regarding the perception of the character of the offender in the time since his commission of the offences and in his recent interaction with both his employer, other persons in the community, and the reference provided on his behalf by his daughter, and taking into account the evidence given by his wife, I am of the view that there is no risk to identifiable children or children in general.
The relevant prerequisites to non-registration pursuant to s 3C of the Child Protection (Offenders Registration) Act 2000 relate to his age at the time of the offence, the age of the victims, and the likelihood of him committing another registrable offence, which, to describe it as negligible might be seen as an overstatement in light of the assessment of persons regarding his relationship with children, including his grandchildren.
In all of the circumstances, I accordingly declare, pursuant to s 3C(1), that the offender is not to be treated as a registrable person for the purposes of that Act in respect of the offence for which he has been convicted.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2024

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